Saturday, April 17, 2010

Great Escape: The Strange Case of Lalu Yadav


Ram Jethmalani has done it again. His legal acumen and forensic ability collapsed the Hawala case against L.K. Advani into an untidy legal heap to obviate further trial. Hawala transactions did occur. The ‘who-dun-it’ was known. But Jethmalani paralysed the law on a technicality. The flamboyant Lalu has amassed a lot of power and wealth. Stories about this are legendary. Somehow he has managed to save himself. At some point in time he had the protection of Kapil Sibal whom he made a Rajya Sabha MP. Now “Ram” has found an escape route. The difference from the Hawala case is that Lalu has an acquittal. Advani did not go to trial. The controversy centers around whether the state government could appeal the acquittal to the Patna High Court; and then the Supreme Court. On 20 September 2007, the Patna High Court felt that an appeal against Lalu’s acquittal lay. Lalu and the CBI, which was investigating his case, appealed to the Supreme Court which decided that the Patna High Court was wrong. Accordingly, if the Union government did not appeal, Lalu was scot-free on these charges after the trial court’s verdict of acquittal.

Is this a case where the ‘law’ has been ‘hoodwinked’ by politics? Common sense would suggest that a serious corruption case should not just stop at a trial court acquittal. Any politician, other than Lalu, may have wanted exoneration from the higher court. But not Lalu. It would appear the Manmohan Singh-Sonia Gandhi government wanted to give Lalu a reprieve. The politics arose in this way. In 1997, the Patna High Court ordered a CBI inquiry into these charges. The CBI charged Lalu with assets of Rs.46,26,827 in excess of known sources of income under the Prevention of Corruption Act (PCA). As the state police was not the prosecuting authority (since Lalu was in power) and CBI prosecuted, it was for the CBI or Central Government to appeal. But neither appealed. Both claimed that the investigation had been conducted properly. Justice Lodha’s judgment (for Chief Justice Balakrishnan, himself and Chauhan J) of 1 April 2010 states that the CBI informed the Court that “the central government after considering the conclusions and findings of the trial out took a conscious and considered decision that no ground whatsoever was made for filing an appeal from the judgment”. Good grief! Is this politics? Surely! Was the investigation that bad? Was the trial court judgment that good? Who took the decision not to appeal? Home Minister? Law Minister? On whose advice? The Attorney General? 10 Janpath? Suspicion will always lie that Lalu’s support was necessary to keep the UPA coalition alive.

Now, to the law. Justice Lodha is a skillful judge who has the uncanny ability to define and redefine the law at will. The judgment itself has abstruse references to dictionaries and 18th-19th century English cases – ignoring Justice Krishna Iyer’s dictum: “Lexicons and outdated moth eaten judicial expressions are not a safe guide to interpret law for the people”. In a panoramic sweep, Justice Lodha recounted that appeals against acquittal were not allowed in 1861 but were provided in 1872, 1882, 1898, 1955 and 1973. The controversy is whether the State government or the original complainant can appeal an acquittal? No doubt, because of the regime change, this means the State government of Nitesh Kumar – an arch enemy and rival of Lalu. The conclusion that an appeal can only lie at the instance of the Union government seems like intricate and involuted politics as well as bad law.

Normally, appeals are not allowed against petty cases (Section 376) and where the accused pleads guilty (Section 375). This is not a petty case or one where Lalu pleaded guilty. Lalu could have appealed against conviction (Section 374). But Lalu has not been convicted. Normally, the State government can appeal against sentence and acquittal (Section 377-8); and the Union government against sentence and acquittals (Section 377-8) when the CBI investigates the matter. But is the State government helpless where the Central Government refuses to appeal in CBI investigated cases?

For this we have to go to Section 378 of the Code. Normally, the State government can direct “the Public Prosecutor” to appeal “in any case” (section 378 (1) (b)). But, in this case, since the investigative agency was the CBI, it is said that the Central government can “also” direct “the Public Prosecutor” to appeal (Section 378 (2)). The operative word is “also”. As Omar Khayyam puts: “Yes! And if a single alif were the clue, could we but find it to the treasure house and peradventure to the master too!” Everything depends on this alif. “Also” should mean the state government can appeal in any case and the Central Government can also appeal. But, according to Justice Lodha, the legislature clearly maintained a “mutually exclusive division in the matter of appeal” of the Central and State governments respectively. Why? Surely, the State government was at least the notional complainant, and normally invites the CBI to investigate cases. But for this invitational consent, police investigation is normally a state subject. Here the CBI was brought in by the Patna High Court. Such crossing of federal lines by the courts has been approved by the Supreme Court recently. This should make no difference to the interpretation of the Criminal Procedure Code. The State government is a stake holder, not just for itself but also the rule of law.

It is this aspect that seems to be forgotten. The rule of law both protects the accused and ensures justice. To interpret the law in the manner Justice Lodha has done provides an immunity to Lalu not directly provided by the law. All that Lalu had to do was to persuade his political allies in the Central government to look the other way. Political corruption stalks through our polity in embarrassing proportions – no less in Lalu’s case where the acquittal should have been tested at the highest level. To block “access” to that level on a whim of the Central Government and the speculative interpretation of the law by the Supreme Court threatens federalism, justice and the rule of law.

But, one question survives. If the Union government declined to appeal, was this on the advice of the CBI which gave up on its own investigation? Or by Union government off its own bat? What does the file say? Could the Supreme Court or High Court have asked for the file to discern whether plausible reasons existed for not filing an appeal? Now that the investigation and decision has been made, in my view a ‘Right to Information’ application lies to probe the matter which is not forbidden by the RTI Act 2005 as the investigation is over (see Section 8(b) of the RTI Act).

Lalu may have won. But justice and federalism have suffered. Politics has intervened. The judges (including the retiring Chief Justice) have validated this political intervention. The judgment came on 1 April 2000. April Fool’s Day. Unfortunately this is no joke. It is the law of the land.

Saturday, April 3, 2010

The Khap Murders

The Khap Murders
Rajeev Dhavan

In the late 19th century, District Judge J.H. Nelsen warned Madras Chief Justice Innes of Madras that the dharmasastra law was vastly different from the ‘real’ law of the mofussil. In 1948, Ambedkar warned the Constituent Assembly of India against the supposed innocence of villages and panchayats. Politically, we have come to revere Panchayats of all kinds. Socially, panchayat justice can be perverse, casteist, cruel, vindictive and murderous. We are still grappling with the real law of mofussil.

The collective murder of Babli and Manoj by the panchayat village near Kathal affirms the brutality of the panchayat. Babli and Manoj (aged 19 and 21) eloped. When they caught a bus, a Scorpio laden with her brother and cousins (Suresh, Gurdev and Satish) and uncles (Rajender and Baru Ram) and a driver chased and stopped the bus and forced them out. They were murdered – Babli by poison administered by her brothers and Manoj by strangling. The bodies were found in a canal and un-ceremoniously cremated. Their offence: the marriage was within the gotra. The murder was ordered by Ganga Raj the Panchayat’s leader who also ordered a Rs.25,000 fine on those who kept in touch with Manoj’s family. Manoj’s sister and his courageous mother Chandrapati were both harassed. The District Session Judge, Vani Gopal Sharma, imposed the death penalty on the killers, life imprisonment for Ganga Raj and 7 years for the driver. Until caught, the accused were heroes in their caste’s cause. These occurrences are not new. I have over 10 volumes of reported items in my papers. The All India Democratic Women Conference’s (AIDWA) meeting on 11 January 2009, reported ‘honour’ killings and crimes in Punjab and Haryana (about 10% of India’s total), UP, Rajasthan, Bihar and elsewhere. Home Minister Chidambaram may well have responded to Brinda Karat’s question in the Rajya Sabha on 28 July 2009, that his government does not recognize the Khap panchayats or their authority to punish. At least, this is a better answer than BJP’s S.S. Ahluwalia officially telling the UN that allegations of honour killings were derived from “(s)elective reproduction of unsubstantiated reports … based on hearsay”. Truth is so easily mortgaged to politics.

Like many countries, India has two legal systems. The ‘real’ legal system of ‘social law’ and the ‘state legal’ system which overlaps ‘social law’. ‘State law’ works with authority in a number of commercial, transactional and other areas. But in many social areas, it is the ‘social law’ that prevails. ‘State law’ has kept its reformist distance as a dream in so many matters including child marriage, widows – even sati. It is the belief of panchayat and other custodians of “social law” that their law is supreme and supremely includes threats, mayhem, ostracism, beatings, humiliation, the naked parading of mothers and girls, drinking urine and eating excreta, kidnapping, rape (what kind of honour is there in rape?) and cold blooded murder. This is a mild review of an unending gruesome catalogue.

“Honour” killing and ‘suicides’ (which should be called dishonourable murders) are a compendium term associated with Pakistan, Jordan, Palestine and the like. It is insufficient in its description to many Indian situations which are about the maintenance of power, authority and status to make the vulnerable suffer the authority of the powerful. The Punjab High Court said on 16 March 2010 that it will not tolerate parallel judicial systems? But it exists, not just in Punjab and Haryana but throughout India. It crosses the religious divide. Throwing stones at Muslim countries does not resolve India’s problems.

How does the ‘State system’ accommodate the Khap system or its equivalent? This is a problem that exists throughout the world. The first approach is that of indifference. The police refuse to impose ‘state law’ on the law of the panchayat. If the ‘state’ law moves, it could result in death sentences of the kind we have witnessed in the Babli-Manoj case. This is rare. Second, various countries, such as Pakistan passed laws against ‘honour’ killings. But consider the Pakistan Supreme Court’s decision in Kamal v. State (1977) where it lessened the capital sentence because such killings were supposedly caused by grave provocation (the provocation defence). The bench included Justice Dorab Patel. In 1989, the Shariat Appellate Bench called for an ‘Islamized’ change in the law, leading to the Qisas and Diyat Ordinances after which the provocation defence was not available per se. But offences could be compounded, and various other ‘Islamized’ options were opened up. From 1995, the provocation defence resurfaced in alleged Honour killings. The tide of honour killings was unabated. In 2004, further changes were made obviating defences where the crime was in “the name or the pretext of honour”. Muhammad Ameer’s case (2006) suggests that Pakistan courts may continue the “patronage of honour killings”.

Honour killings exist in some abundance in Eastern Turkey. In Jordan, data from 1997 to 2009 shows that women (especially teenagers) are subject to honour deaths and buried in unmarked graves. Such honour killings have been reported Lebanon, Egypt and even amongst migrants in England. In 2000, the UN’s General Assembly passed GA55/111 calling governments to intervene. 26 States including Pakistan abstained. In July 2002 GA55/66 presented a report to eliminate honour killings. Asma Jahangir, rapporteur on extrajudicial summary or arbitrary executions since 1998, has filed separate reports on how honour killings attract impunity throughout the world. Concurrently, Radhika Coomaraswamy, UN Rapporteur on violence against women also reported on honour killings from 1996 onwards. Such killings also fall under the remit of the UN Committees on Human Rights (HRC) and women (CEDAW Committee). The former has made it clear in General Caveat 78 on article 3 of the ICCPR (Convention on Civil and Political Rights) that honour killing seriously undermine human rights.

One important defence of honour killings is the so called “culture” defence. Culture has always been an excuse to limit womens’ lives and prospects. It acquires even more sinister proportions when it is argued that honour killings find their defence, justification and roots in culture. It is from such “culture” defences that the South-East Asian theory of human rights has arisen whereby the culture of human rights has to yield to the so called demands of a so-called traditional culture. If the ‘culture’ defence is totally accepted as in the case of Khap Panchayats, the human rights enterprise would die. Culture and the culture of human rights have to be reconciled. There is a plimsoll line below which no culture can be permitted to go.

For our present purpose, I do not want to enter into the culture-human rights debate. I will assume that there is, and should be, universal acceptance that intentional wanton killings of the vulnerable with intent are grievous murders. There is much richness to be drawn from multiculturalism. This is not one of them. I do not subscribe to the death penalty. But such crimes cannot go unchecked, unchallenged and unpunished.

Indians often malign honour killings in Muslim countries. Caste driven panchayats are no better. To say that all this about honour is a lie. It is about revenge and murder. The sooner we accept that, the better.